United States v. Romero

United States District Court, D. New Mexico

April 19, 2018

UNITED STATES OF AMERICA, Plaintiff,v.MANUEL ROMERO, JR., Defendant.

MEMORANDUM OPINION AND ORDER

THIS
MATTER is before the Court on Defendant's Motion to
Suppress Evidence and Statements. (Docs. 20, 22). The United
States has responded, (Doc. 25), and Defendant has replied,
(Doc. 31). On March 29, 2018, the Court held an evidentiary
hearing. Assistant United States Attorneys John Balla and
Richard Williams appeared for the United States, and
Assistant Federal Public Defenders Jane Greek and Elyse
Battaller-Schneider appeared with Defendant Manuel Romero,
Jr. Having considered the arguments of counsel, the
applicable law and the evidence, the Court denies the Motion.

I.
Procedural Background

This
case originated on August 16, 2017, when the United States
filed an Indictment charging Mr. Romero in Count 1, felon in
possession of a firearm, a violation of 18 U.S.C. §
922(g)(1), and in Count 2, knowing possession of a stolen
firearm, a violation of 18 U.S.C. § 922(j). As described
above, Mr. Romero filed a motion to suppress evidence and
statements. The evidence includes the firearm that was seized
from Mr. Romero's possession on April 29, 2017, by Las
Cruces Police Officer, Matthew Dollar.

Officer
Dollar was the only fact witness at the evidentiary hearing
on the motion to suppress. The Court admitted exhibits from
both parties, and heard oral argument.

II.
Findings of Fact

On
Friday April 29, 2017, Officer Dollar was on routine patrol
in an area he described as “District 6, ” in Las
Cruces, New Mexico. As of that date, Officer Dollar had been
an officer with the Las Cruces Police Department (LCPD) for
approximately two and one-half years. Also, as of that date,
Officer Dollar had been patrolling District 6 for
approximately one-half to two years. Officer Dollar described
his training to become a LCPD officer, including the LCPD
academy where he studied law and investigations.

At
approximately 5:30 p.m., Officer Dollar was patrolling
District 6 near Del Rey Boulevard and Highway 70. As he drove
past Emmanuel Lutheran Church, he observed an adult male
standing at the front entry area of the church and peering
into the church through a window. Officer Dollar is familiar
with the Emmanuel Lutheran Church, having passed it 50-75
times each week while on patrol. He never sees cars at the
church at this time of day. Several days before, Officer
Dollar and other LCPD officers had received information
regarding issues at area churches that had been vandalized
and that items had been stolen. Government Exhibit 2. As a
result of his observation and prior reports of vandalism and
theft, Officer Dollar turned around and drove toward the
church.

The
Court admitted at the evidentiary hearing Government Exhibit
1, an excerpt of an audio-video recording from Officer
Dollar's lapel camera.[1] The recording speaks for itself. The
Court notes from Government Exhibit 1 that the following
occurred:

Officer
Dollar parked in the church parking lot and approached the
church entry area on foot. He turned a corner into the entry
courtyard where a male figure wearing a backpack is visible
crouching against the exterior church wall with his back to
Officer Dollar. The Court also notes the following verbal
exchange then took place:

Officer Dollar: Police Department. Hey, what's up man?
How are you?

Mr. Romero: Pretty good.

Officer Dollar: What's going on?

Mr. Romero: I'm getting some water and charging my phone.

Officer Dollar: What's that?

Mr. Romero: I'm getting some water and trying to charge
my phone.

Officer Dollar: You don't have any weapons or anything on
you, do you?

Mr. Romero: No, I got a --.

Officer Dollar: Don't reach for it.

Mr. Romero: Okay.

Officer Dollar: Set that down. Let me pat you down real
quick.

Mr. Romero: Oh, man. Why?

Officer Dollar: Listen to me. This can go smoothly or it can
go rough for you. I suggest that you go with what I'm
asking you, alright, or I'll charge you with ...

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